Texas Employers' Ins. Ass'n v. Frankum

• Decision Date: 12 December 1946
• Docket Number: No. 11799.,11799.
• Citation: 198 S.W.2d 484
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. FRANKUM.
• Court: Texas Court of Appeals

198 S.W.2d 484

TEXAS EMPLOYERS' INS. ASS'N v. FRANKUM.

No. 11799.

Court of Civil Appeals of Texas. Galveston.

December 12, 1946.

Rehearing Denied January 9, 1947.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Suit under the Workmen's Compensation Act by Arthur Lee Frankum against Texas Employers' Insurance Association to set aside an award of the Industrial Accident Board in favor of Arthur Lee Frankum. From a judgment granting the relief, defendant appeals.

Affirmed.

Sewell, Taylor, Morris & McGregor, of Houston (Wm. E. Junell, of Houston, of counsel), for appellant.

F. Warren Hicks, of Houston, for appellee.

GRAVES, Justice.

This appeal by appellant compensation carrier is from a judgment of the 61st District Court of Harris County, entered both in response to a jury's verdict on special issues and upon independent findings of the court itself from the pleadings and evidence, in favor of appellee-claimant for nine weeks' total disability at the rate of $20 per week, from October 18 of 1944 to December 20, 1944; and 300 weeks of permanent partial disability at the rate of $19.62 per week, from December 10 of 1943; all as the result of an injury sustained by him on December 10, 1943, in the course of his employment for the Earl McMillian Company, appellant's insured.

While admitting in its brief that "On December 10, 1943, the plaintiff admittedly sustained an accidental injury while in the course of his employment," appellant assails the judgment through VI points of error, which may be thus condensed:

The first two, to the effect that the jury's finding that appellee's weekly wage-earning capacity, during the existence of his partial incapacity, in answering special issue No. 9, was "$35.00 per 40-hour week," was (a) not responsive to the issue as submitted by the court, and (b) was "contrary to the undisputed evidence, or at least contrary to the overwhelming preponderance of the evidence."

Points III and IV, challenging the jury's finding, in response to special-issue No. 10, that the appellee had good cause for not filing his claim for compensation herein with the Industrial Accident Board prior to December 23 of 1944, was (a) against the undisputed evidence, which showed as a matter of law that he did not have good cause, or (b) was unsupported by any evidence, or at least was contrary to the overwhelming preponderance of the evidence."

Points V and VI, contending that the overwhelming preponderance of the evidence showed that the appellee was neither totally nor partially incapacitated, for either of such periods, as a result of the injury so received by him on December 10 of 1943.

None of these presentments, it is determined, should be sustained. This for the over-all reason that it is clear to this court, after a painstaking review of the record in this cause, that each and all of the questions thus posed by appellant for decision here, with the single exception of its claim that the jury's answer of "$35 per 40-hour week" to issue No. 9 was not legally responsive to the court's inquiry therein, raise only such questions of fact as—under our compensation law—the trial court and the jury, on evidence before them that was sufficient, competently determined adversely to the appellant.

Wherefore, its criticism of the jury's quoted answer to special issue No. 9 will be first disposed of.

The trial court, in advance, thus—without objection upon appellant's part—defined partial incapacity:

"By the term `partial incapacity', as used in this charge, is meant that an employee by reason of an injury sustained in the course of his employment is only able to perform part of the usual tasks of a workman, but nevertheless is able to procure and retain employment reasonably suitable to his physical condition and ability to work, or is only able to perform work of a less remunerative class than he performed prior to the injury, whereby he suffers a depreciation or reduction in his earning capacity."

It then propounded issue No. 9 in this language:

"What do you find from a preponderance of the evidence to be the plaintiff's average weekly wage earning capacity during the existence of such partial incapacity as you may have found?"

Thereupon, after full evidence, the jury answered the inquiry. It did not, as appellant's point argues, find that the appellee did not have to work more than 40 hours per week, nor that he could earn $35 by working a total of 40 hours each week; but, reasonably interpreted from a fair appraisal of the detailed evidence before it, what the jury actually found was that the appellee's average weekly wage-earning capacity during this period throughout which they had found he was partially incapacitated was $35—probably, it may be, because he would be only able to work 40 hours a week, and if that was the reason in their minds, it would have been a legitimately inferable one, since he and other witnesses testified he had really not been physically able to work longer.

The court's inquiry sought only to elicit the average weekly wage-earning capacity of the appellee during the existence of such partial incapacity in dollars and cents; it did not ask them to find how many hours a week he would have to work, nor to give any explanation of how they arrived at such sought-for amount in money.

So that, it is determined, the fact that the jury in their answer saw fit to so explain why they thought his average weekly wage-earning capacity would be $35 did not destroy their specific finding that it would be that during the existence of his partial incapacity.

In other words, it would seem to have been immaterial as to how many hours he worked, or as to how the jury arrived at the amount it was in the manner given asked to find, as long as there was evidence to support such a finding.

There is no doubt, under this court's review of the evidence, that the finding of $35 per week was fully supported by the very full testimony heard; hence it concludes that the trial court properly construed the jury's answer, and correctly disregarded the remainder of it, following that positive finding in dollars, as being surplusage. On this point, the principle involved is thought to be supported by this court's holding in Knutson v. Brazoria County, Tex.Civ.App., 170 S.W.2d 843, loc. cit. 845, point (5), affirmed by Supreme Court, Brazona County v. Knutson, 142 Tex. 172, 176 S.W.2d 740, loc. cit. 743, point 2.

As indicated, the remaining points—in the alternative manner therein recited— make the presentments that the other challenged findings of the court and jury in the appellee's favor—that is, that he had good cause for not filing his claim with the Accident Board before he did, and that his incapacities of both degrees and durations resulted from the injury he so received on December 10 of 1943—were without any evidence to support them, or so against the overwhelming preponderance of the evidence that they should be set aside.

This court is unable to so hold; concluding rather, as presaged supra, that there was not only ample support for all the jury's findings, but, further, that this...